Docket No: 8654-17
APR 30 2019						


Dear 

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 29 January 2019.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations and policies.

You enlisted in the Navy on 22 November 1989.  According to the information in the record, during the period from 3 April to 5 July 1990, you received two non-judicial punishments (NJP) for two specifications of wrongful use of cocaine and unauthorized absence (UA) for seven hours 90 minutes.  Although the Board lacked your entire service record, the Board relied on a presumption of regularity that you were notified of pending administrative separation action by reason of misconduct due to drug abuse.  After you waived your procedural rights, your commanding officer (CO) recommended discharge under other than honorable (OTH) conditions by reason of misconduct due to drug abuse.  The discharge authority approved this recommendation and directed separation under other than honorable conditions by reason of misconduct.  On 27 July 1990, you were discharged.  

The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and contentions that your discharge was too harsh because your misconduct was a onetime offense, you never used drugs while on duty, and you are sorry for the offense you did while you were on leave.  In this regard, the Board concluded that your violation of the Navy’s “Zero Tolerance” drug policy and misconduct, outweighed your desire to upgrade your discharge.  

In regard to your contention that your misconduct was a onetime offense, the Board noted that the record contains documented evidence which is contrary to your contention.  The record clearly shows you received two NJPs for two specifications of cocaine use and being in an UA status.  The Board also noted that although a Sailor’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by a single incident of misconduct may provide the basis of characterization of service.  Moreover, generally, characterization under OTH conditions is warranted for misconduct. 

In regard to your contention that you never used drugs while on duty, you were on leave, the Board noted that there is no evidence in your record, and you submitted none, to support your contention. The Board noted that even if a Sailor is on leave when he or she commits misconduct, they are still governed by the laws and regulations of the Navy. 
  
It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time.  You are entitled to have the Board reconsider its decision upon the submission of new and material evidence.  New evidence is evidence not previously considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

xecutive Director